Must a plaintiff plead a rescission cause of action or can they simply state a notice of rescission in the complaint?

Was served with a breach of contract complaint. There is no rescission cause of action stated. There is only a statement (under "General Allegations") that the Complaint itself serves as a notice of rescission. Does rescission have to be properly pleaded or is this simple statement of notice sufficient to claim rescission?

Los Angeles, CA -

Attorney Answers (3)

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Litigation Lawyer - San Marino, CA
Answered

Rescission is not a separate cause of action. Rescission of a contract terminates liability and restores the parties to their former positions by requiring each party to return whatever benefit he or she received under the contract. (Civil Code §1692.)

The effect of a rescission is to extinguish the contract. (Civil Code §1688). The rescinding party is entitled to restitution. Restitution is a remedy for rescission. In other words, the rescinding party is entitled to restitution of the consideration given to the other party.

Service of the summons and complaint constitutes sufficient notice to claim rescission.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is... more
Jeff Hoang Pham

Jeff Hoang Pham

Litigation Lawyer - Costa Mesa, CA
Answered

Rescission is not a cause of action----it is an equitable remedy. As such, the plaintiff is not required to plead rescission as a cause of action in the complaint.

The request for rescission is ordinarily included as part of the plaintiff's prayer for relief, so it is a bit unusual that it was instead included in the general allegations. But if it is otherwise clear from the complaint that the plaintiff is requesting the remedy of rescission, this may not be much of an issue.

The information presented here is general in nature and is not intended, and should not be construed, as legal... more
David Andrew Mallen

David Andrew Mallen

Employment / Labor Attorney - El Segundo, CA
Answered

This is an area where even experts disagree. But if they are asking for it in the complaint, anywhere in the complaint, then you are on notice of the request and the judge will consider it.

David Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not... more

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